Commonwealth v. Butler

668 N.E.2d 832, 423 Mass. 517, 1996 Mass. LEXIS 206

• Court: Massachusetts Supreme Judicial Court
• Decided: August 14, 1996
• Status: Published

Opinions

Fried, J.

We consider whether the defendant’s incriminating statements regarding the homicide with which he is charged should be suppressed. After his arrest for breaking and entering, the police delayed his presentment to a court until after questioning that led to his statements concerning the homicide.

The defendant is charged with murder in the first degree and breaking and entering in the nighttime. Prior to trial, the defendant moved to suppress statements he made to the West Springfield police after his arrest and prior to his presentment to a court for arraignment. Following a hearing, a Superior Court judge granted the defendant’s motion to suppress the statements. The Commonwealth sought leave to obtain interlocutory review of this ruling from a single justice of this court pursuant to G. L. c. 278, § 28E (1994 ed.), and Mass. R. Crim. P. 15 (b) (2), 378 Mass. 882 (1979). The single justice allowed the Commonwealth’s application and transmitted the case to the full court. We now vacate the allowance of the motion to suppress.

I

The judge made the following findings of fact.¹ On June 5, 1993, the victim’s mother reported to the West Springfield police department that the victim had been missing since May 23, 1993. On June 9, 1993, the victim’s brother and Robert Lunt, the owner of the multi-family residential unit where the victim resided, went to the police station to report that the defendant had broken into the victim’s apartment on June 7, 1993. Lunt also reported that the defendant was the last person to see the victim before her disappearance. Lunt registered with the police a breaking and entering complaint against the defendant.

At approximately 11 p.m. on Thursday, June 10, 1993, the police received a call that alerted them to a vehicle parked outside the victim’s residence. A check of the registration plate revealed that the plate was stolen. The police entered the building and discovered two individuals upstairs and Lunt in the basement.² A further search of the basement uncovered the victim’s body hidden under a pile of carpeting. The police brought Lunt and the two others to police headquarters for questioning. By 12:20 a.m., the police located and arrested the defendant on charges of breaking and entering in the nighttime based on Lunt’s earlier complaint.

Captain Murray, the lead investigating officer, remained at the apartment house until approximately 5 a.m. A preliminary examination of the body by Captain Murray and the medical examiner revealed a core body temperature of sixty-one degrees while the room temperature was seventy-two degrees. The body showed no visible signs of trauma and had not begun to decay or decompose.

Upon his return to the station, Captain Murray reviewed the statements made by Lunt and the other two persons found at the scene. At 5:40 a.m., Captain Murray and State Trooper John Murphy began interviewing Lunt. Lunt made two statements that indicated that the defendant knew the victim’s whereabouts during the period that she was missing. After more than three and one-half hours of questioning Lunt, the officers were unable to draw any further conclusions regarding the cause of the victim’s death.³

At approximately 10:50 a.m. on Friday, June 11, 1993, Captain Murray and Trooper Murphy began to interview the defendant at the West Springfield police department, where he was in custody.⁴ The officers again informed the defendant that he was under arrest for the June 7, 1993, breaking and entering of the victim’s apartment. The officers advised the defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436 (1966), and the defendant waived those rights both orally and in writing. The officers testified that they gave the defendant an opportunity to make a telephone call. The judge made no findings to this effect. When informed about the victim’s death, the defendant said that he knew nothing about it and had last seen the victim approximately two weeks before.

At one point, the defendant denied telling Lunt about the victim’s supposed whereabouts during the time when she was reported missing. Captain Murray brought Lunt into the room. The defendant and Lunt began accusing each other of lying. One of the officers told the defendant that the autopsy would probably indicate the cause of death. Lunt then yelled at the defendant to tell the officers what happened. The defendant screamed back, “I didn’t mean to do it.” The officers then removed Lunt from the room. It was approximately 1

P.M.

Earlier, at approximately 12:15 p.m., during the interview of the defendant, Captain Murray had called the Springfield District Court, which is located no more than a ten-minute drive from the police station. Captain Murray informed someone at the clerk’s office that he had the defendant under arrest on a charge of breaking and entering and that he was interviewing him as a “possible suspect in a death from an unknown cause.” The captain asked how late he could bring the defendant in for arraignment on the breaking and entering charge. The court employee responded that if he was not in the courthouse by 1 p.m., then he would not be arraigned that day. (Arraignments would next be held after the weekend, on Monday morning.)⁵ Captain Murray knew that the defendant had a right to be arraigned, but he chose to continue the interrogation of the defendant rather than bring him to court for arraignment on the breaking and entering charge.

After Lunt left the interrogation room, the defendant started to ciy. The officers gave the defendant a soda. The officers resumed questioning the defendant concerning his interaction with the victim. Shortly thereafter, at approximately 1:15 p.m. on Friday, June 11, 1993, the defendant agreed to provide a written statement. In that statement, the defendant asserted that in the early morning hours of May 27, 1993, he and the victim were smoking crack cocaine at her apartment when she convulsed, vomited, and soon thereafter lost consciousness. The defendant claimed that he tried unsuccessfully to resuscitate her. He then cleaned her with paper towels and decided to move her body to the basement. He stated that in order to keep vomit from falling out of her mouth while he transported her to the basement, he stuffed paper towels in her mouth. He then reported that he preserved her body by packing “blue ice” around it. There was testimony that the statement was completed at 2:15 p.m., but the judge made no findings to that effect.

The officers doubted the defendant’s version of events which conflicted with the statements of several other witnesses. Moreover, the condition of the body was not consistent with preservation merely by ice packs. A State trooper called the West Springfield police department to report that the medical examiner, while conducting the autopsy of the victim’s body had discovered paper towels lodged deep in her throat. This statement indicated to the officers that suffocation was the cause of death.

At approximately 3 p.m., the officers presented this information to the defendant and told him that they did not believe his “blue ice” story. The defendant then acknowledged that he had preserved the victim’s body by placing it in the freezer of an ice cream truck. Lunt owned the truck and the victim had sold ice cream from it prior to her death. After the victim’s death and before the officers discovered her body, the defendant had driven the truck in the victim’s place serving ice cream from it while the victim’s body was in the truck’s freezer. At approximately 3:15 p.m. on Friday, June 11, 1993, the defendant was charged with murder in the first degree.

On Saturday, June 12, 1993, some time after 11 a.m., Captain Murray interviewed the defendant again. The defendant made essentially the same inculpatory statements he had made at the three o’clock interview on Friday. At some point, the defendant became agitated and demanded to be returned to his cell. Captain Murray stopped the questioning and returned the defendant to his cell. At approximately 1 p.m., the defendant requested to speak with Trooper Murphy alone. Trooper Murphy met with the defendant alone. Trooper Murphy suggested that someone must have assisted the defendant when he moved the body out of the ice cream truck’s freezer to the basement. The defendant responded that the trooper was correct, “but I’m not gonna to tell you who he is until I talk to my lawyer on Monday.” Trooper Murphy immediately ended the interview.

There was testimony that on Sunday, June 13, 1993, the defendant asked to speak with Captain Murray. Captain Murray went back to the cell area. The defendant told Captain Murray, “I could help you find Steven Higgins.” Captain Murray would not talk with the defendant. The judge made no findings concerning the defendant’s interaction with the officers on Sunday.⁶

The Superior Court judge found that, except for the last conversation with Trooper Murphy on Saturday, before each of the defendant’s statements, Captain Murray advised the defendant of his Miranda rights both orally and in writing. On each of those occasions, the defendant acknowledged, both in writing and orally, that he understood his rights and waived them. The defendant was not under the influence of drugs or alcohol at any time during the questioning. The defendant’s responses to the questions were detailed and responsive. Finally, the judge found that, although the questioning was not genteel, it was civil and the officers did not engage in deception or trickeiy.

On Monday, June 14, 1993, the defendant was presented to the Springfield District Court and arraigned on both the breaking and entering and murder charges.

The defendant moved to suppress all of his statements given to the police after his arrest and before his presentation to the court on June 14, 1993. The judge granted the defendant’s motion to suppress all of the statements. The judge found that the delay between the defendant’s arrest and presentation to a court was unreasonable under the test outlined in Commonwealth v. Sylvia, 380 Mass. 180, 183-184 (1980), citing Commonwealth v. Fielding, 371 Mass. 97, 114 (1976). The judge reasoned that “[t]he delay was unreasonable because Captain Murray knew that the defendant was entitled to a prompt arraignment but ‘deliberately’ delayed it with ‘a purpose to the procuring of a statement’ from the defendant. See Fielding, 371 Mass, at 114. . . . In these circumstances, suppression of the defendant’s statements serves the precise purpose of deterring the police from future malfeasance.”

n

Rule 7 (a) (1) of the Massachusetts Rules of Criminal Procedure, as amended, 397 Mass. 1226 (1986), states that “[a] defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session.” When the defendant is presented to the court, rule 7 requires the court to determine whether the defendant is indigent and, if eligible, to assign counsel to the defendant. In addition, at presentment the court must either arraign the defendant or set a time for arraignment,⁷ and determine the conditions of the defendant’s release. Therefore, the rule of prompt presentment is designed to facilitate the defendant’s right to counsel, provide the defendant with a recitation of the charges against him by a member of the judiciary, and ensure that the defendant’s detention is not unlawful. See Commonwealth v. Cote, 386 Mass. 354, 361 n.ll (1982). In a less direct manner, the rule, recognizing the coercive nature of a lengthy interrogation, provides the court with an additional assurance (over and above the assurance supplied by compliance with the requirements of Miranda, supra) that statements made by the defendant after arrest but before presentment are free, intelligent, and voluntary. See Commonwealth v. Rosario, 422 Mass. 48, 51 (1996) (purpose of rule is to “eliminate the opportunity and incentive for application of improper police pressure”); Commonwealth v. Banuchi, 335 Mass. 649, 656-657 (1957).

Our early case law required police to present the defendant to the court as soon as reasonably possible. See Keefe v. Hart, 213 Mass. 476, 482 (1913); Tubbs v. Tukey, 3 Cush. 438, 440 (1849). More recent cases have struck the balance between effective law enforcement and the defendant’s rights by allowing delay, so long as the delay is not unreasonable. See Rosario, supra at 52 (summarizing case law). Whether or not the delay was unreasonable was determined on a case-by-case basis. See, e.g., id. at 57-58 (more than twenty-hour delay upheld); Commonwealth v. Fryar, 414 Mass. 732, 743 (1993) (confession “after the hour when overnight arrestees are usually taken to the District Court for arraignment” not excluded for unreasonable delay); Banuchi, supra (arrest on Sunday, arraignment on Wednesday not an unreasonable delay). The factors we have suggested that a judge consider when determining if a delay is unreasonable are: “(1) whether Miranda warnings were given; (2) the circumstances, including the passage of time between the illegal arrest and the confession; and (3) the purpose and flagrancy of the official misconduct.” Rosario, supra at 52, citing Commonwealth v. Sylvia, supra at 183-184. Time alone is not a dispositive factor, but one of the factors in a flexible, totality of the circumstances analysis. In fact, we stated in Rosario, supra, that “[w]e are not aware of any reported Massachusetts opinion in which a statement was suppressed because of unreasonable delay in arraigning a defendant.”

Earlier this term, after the decision of the Superior Court judge in this case, this court decided Commonwealth v. Ortiz, 422 Mass. 64 (1996), at the same time as Commonwealth v. Rosario, 422 Mass. 48 (1996). Recognizing that the police, trial judges, prosecutors and defense counsel are entitled to as clear a rule as possible in this area, “[w]e adopt [ed] for the future, with respect to police questioning of an arrested person, a rule . . . [that] [a]n otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or recorded waiver of his right to be arraigned without unreasonable delay.” Rosario, supra at 56. Thus, the court created a “safe harbor” for statements, otherwise admissible, that the defendant provides within six hours of arrest. The court also explained that an effect of the rule will be to “bar admission of a statement made after the six-hour period unless there is a waiver of prompt arraignment.” Id. Thus, in Rosario the court announced a per se rule that statements made during the six-hour safe harbor will not be excluded for unreasonable delay and that statements made after the expiration of the six-hour safe harbor will be excluded.

The court limited the application of the rule announced in Rosario to incidents of presentment delay occurring after our decision in that case was announced. See id. Therefore, the court did not apply the six-hour rule in Rosario and to apply it to this case would be to treat Rosario differently from the defendant here for no legitimate reason. Our decision in Ortiz is not to the contrary. In that case, we noted that the defendant’s statement was given within the six-hour period, implying that we certainly would not apply a more stringent rule retroactively than we established prospectively in Rosario. Rosario does, however, have a bearing on cases of delayed presentment that occurred before that decision. When we consider such cases, we no longer have to be concerned with the impact of the decision on police behavior. See Rosario, supra at 58. Defendants such as Rosario and the defendant here are thus unable to argue for suppression as a deterrent to future police conduct.

In this transitional class of cases, the focus of the suppression inquiry must be, as it was in Rosario, supra at 57-58, on how delay in presentment bears on the issue whether the defendant’s statements were made freely, intelligently, and voluntarily. At some point the delay is so egregious as to put this aspect of a defendant’s statements in doubt. And if the police have engaged in misconduct, other than delay, that would justify suppression as a deterrent against similar future conduct, that too will serve as a basis for suppression. See id. at 58. Cf. Commonwealth v. Perito, 417 Mass. 674, 681-682 (1994) (impact of egregious misconduct by police when considering dismissal of charges); Commonwealth v. Fielding, 371 Mass. 97, 114 (1976) (impact of misconduct by police when considering violation of Fourth Amendment to the United States Constitution).

The facts of Rosario are similar to those here. Both defendants waived their Miranda rights,⁸ and the police did not coerce or threaten either defendant. See Rosario, supra at 57. An initially unlawful detention was not involved in Rosario, see id. at 57, nor is it an issue here, as the police held the defendant pursuant to a breaking and entering complaint and may have arranged for bail on his arrest. See note 2, supra. In both cases, the Superior Court judges’ ground for suppression was that the officers deliberately delayed presentment to give them the opportunity to obtain statements. See Rosario, supra . See also Ortiz, supra at 66. We rejected that as a sufficient basis for suppression.⁹ See id. at 53.

Finally, this is not one of those exceptional cases (of which our jurisprudence offers no examples) of such outrageously long delay that suppression is required simply as an expression of our disapproval. The delay in Rosario from the arrest to the completion of Rosario’s confession, more than twenty hours, was longer than the delay from the arrest of the defendant here, at approximately 12:20 a.m., to his Friday statements, completed by 3:15 p.m. The defendant’s Saturday statements were essentially identical to his Friday statements, perhaps reinforcing the conclusion that his Friday statements were voluntary.

If the facts had revealed that the delay, deliberate or not, had coerced or intimidated the defendant such that the voluntariness of the statements is placed in doubt, the result may have been different. But here there is no suggestion that the delay in any way tainted the otherwise free, intelligent and voluntary statements of the defendant. As in Rosario, the delay in arraignment here was hot so unreasonable as to require the suppression of the defendant’s voluntary statements given after he had received Miranda warnings.¹⁰

The order of the Superior Court allowing the defendant’s motion to suppress is vacated. An order shall be entered in the Superior Court denying the defendant’s motion to suppress.

So ordered.

1 We adopt the findings of the Superior Court judge. The facts we recite that do not appear in the Superior Court judge’s memorandum are set out, based on uncontradicted testimony, in order to complete the sequence of events in this case. They do not affect the legal conclusions of this opinion.

2 Although the Superior Court judge found that all three persons were found in the basement, the uncontradicted testimony of Captain Daniel J. Murray, the officer in charge of the investigation, reveals that the two of the persons were initially discovered in the kitchen on the first floor.

3 The Superior Court judge made no findings as to the matters in this paragraph.

4 The defendant’s booking sheet seems to indicate that when the defendant was booked on the breaking and entering charge, a bail order in the amount of $25 was issued. When the defendant was arrested for murder, the “$25.00” was scratched out and the words “No Bail per Singer” were written.

5 There is no justification for this practice in light of Mass. R. Crim. P. 7 (a) (1), as amended, 397 Mass. 1226 (1986).

6 We note that all questioning had commenced the day before.

7 “ Arraignment shall consist of the reading of the charges to the defendant and the entry of the defendant’s plea to those charges.” Mass. R. Crim. P. 7 (d), 378 Mass. 855 (1979).

8 The delay did not infringe the defendant’s right to counsel. The officers repeatedly advised the defendant of his right to counsel, which he waived both orally and in writing. Once the defendant mentioned counsel, all discussions were terminated, even when the defendant requested to speak with Captain Murray. See Commonwealth v. Cote, 386 Mass. 354, 360 & n.9 (1982).

9 We recognized in Commonwealth v. Rosario, 422 Mass. 48, 53 (1996), that “[a]ny delay for the purpose of interrogation during a time when the appropriate court is in session involves a deliberate decision to delay arraignment in the sense in which the motion judge ruled in this case.” And, further, the very holding of Rosario, supra at 56, assumes that a deliberate delay of presentment for the purpose of procuring a statement is not itself fatal. The fact that in this case the officer called the District Court rather than rely on his memory is not relevant to the inquiry of unreasonable delay.

10 We agree with the dissent’s strictures against appellate factfinding, but do not believe we have violated them. As we point out at the relevant passages, the matters we add are based on uncontroverted testimony and in no way contradict the motion judge’s findings. They merely fill out the narrative. It would be a pity if appellate courts, which carefully study a record, were precluded from ever adverting to such matters, so long as they do so candidly and do not give them inappropriate significance. But most importantly, this disagreement is wholly irrelevant to our conclusion, which rests squarely on our decision in Rosario, supra, from- which the Chief Justice also dissented. There, as here, the court agreed that the violation of the prompt presentment rule was deliberate, but the period of delay between Butler’s initial and crucial statement on Friday afternoon and the time of his arrest was shorter than in Rosario. We note that Butler’s statement was reaffirmed the next day.